Supreme Court, New York County, July 27, 2020

Law Offices of Lawrence Perry Biondi, P.C., White Plains (Richard Mandel of counsel), for plaintiff.

Kinney Lisovicz Reilly & Wolff, P.C., Parsippany, New Jersey (Adam M. Maurer of counsel), for Scaturro Brothers, Inc., defendant.

Goldberg Segalla LLP, Garden City (Michael J. Barresi of counsel), for Super P57, LLC, defendant.

This is a Labor Law action arising out of a fall (and resulting serious injuries) that plaintiff alleges he sustained while working on a construction site. Plaintiff has sued numerous defendants connected to the construction project on which plaintiff was allegedly injured.

The parties are conducting discovery in the action. In particular, defendants are taking the deposition of plaintiff. This deposition, conducted through a Portuguese interpreter and held remotely due to COVID-19, has already required several sessions, and the parties will be continuing the deposition in the near future. During the course of the deposition, a number of disputes have arisen between counsel for plaintiff and the various attorneys for defendants regarding the conduct of the deposition, including the appropriate scope of questioning and the circumstances under which plaintiff's counsel may instruct the deponent not to answer.

The parties sought the court's guidance about these disputes, and held a lengthy telephonic conference on that subject with the undersigned's court attorney, Mark H. Shawhan, Esq. At the request of plaintiff's counsel, this decision and order sets out in more detail the basis for some of the determinations made during that conference—in particular, for the court's rulings about when the attorney for a deponent may (or may not) properly instruct his or her client not to answer a question posed at pretrial deposition.

Pretrial depositions are governed by CPLR 3115 and by the Uniform Rules for the Conduct of Depositions set out at 22 NYCRR part 221.{**68 Misc 3d at 1026}

The Uniform Rules, as amended in 2006, sharply limit the appropriate scope of objections at a deposition. The Rules permit only those objections that would be waived under CPLR 3115 (b)-(d) if not interposed—principally an objection to the form of a question. (See 22 NYCRR 221.1 [a]; CPLR 3115.) Ordinarily, therefore, it would not be proper to object to a question on the ground that the question has previously been asked and answered. Nor would it ordinarily be proper to object to a question merely to preserve the objection for the record, [*2]because the Uniform Rules themselves preserve all objections for the record except as they expressly provide otherwise. (See Pedraza v New York City Transit Auth., 2016 NY Slip Op 30105[U], *9 [Sup Ct, NY County, Jan. 20, 2016, Stallman, J.].)

Additionally, section 221.1 provides that where an objection has been posed, "the answer shall be given and the deposition shall proceed subject to the objections" and to any application for protective order. (22 NYCRR 221.1 [a].) That is, even when an objection by a deponent's counsel is proper, the deponent may not ordinarily refuse to answer based on that objection. Section 221.2 (c) similarly provides that a deponent's counsel "shall not direct a deponent not to answer," either, except as set forth in CPLR 3115 and section 221.2 itself.

Section 221.2 identifies three narrowly circumscribed circumstances in which a deponent may refuse to answer or the deponent's attorney may instruct him or her not to answer: (i) to "preserve a privilege or right of confidentiality"; (ii) to enforce a limitation set forth in a court order; and (iii) "when the question is plainly improper and would, if answered, cause significant prejudice to any person." (22 NYCRR 221.2 [a]-[c] [emphasis added].) Any refusal to answer or instruction not to answer must "be accompanied by a succinct and clear statement of the basis therefor." (Id. § 221.2 [c].) The deponent's attorney may not, therefore, direct the deponent not to answer a question yet decline to explain why pending a future discovery conference with the court.^[FN1]

The dispute addressed in this order turns primarily on the scope of "right of confidentiality" in section 221.2 (a). Plaintiff's counsel took the position during the parties' conference with Mr. Shawhan that for deposition purposes, "right of confidentiality" is synonymous with "privacy"; thus, plaintiff's counsel {**68 Misc 3d at 1027}asserts, he may instruct his client not to answer questions aimed at uncovering information that counsel reasonably believes to be personal and private—for example, the deponent's email address and cell phone number.

This court is not aware of New York authority analyzing this particular question. Upon considering the history, text, and structure of section 221.2, the court concludes that the position of plaintiff's counsel is without merit.

Before section 221.2 was enacted in 2006, case law defined the parameters for when counsel could properly instruct a deponent not to answer a question. And the cases did not recognize preservation of a right of confidentiality, or protection of a deponent's privacy, as a distinct ground for an instruction not to answer. (See e.g. White v Martins, 100 AD2d 805, 805 [1st Dept 1984] [noting that it would be improper to require a witness at a deposition to answer "questions that infringe upon a privilege, or that are so improper that to answer them will substantially prejudice the parties; or questions that . . . (are) palpably and grossly irrelevant or unduly burdensome"]; Ferraro v New York Tel. Co., 94 AD2d 784, 785 [2d Dept 1983] [noting that counsel may properly instruct a deponent not to answer only where the "questions were . . . palpably irrelevant . . . or violative of some legal privilege or constitutional right"]; Watson v State of New York, 53 AD2d 798, 799 [3d Dept 1976] [holding that each question must be answered at a pretrial deposition unless it is "clearly violative of a witness' constitutional rights, or of some privilege recognized in law, or is palpably irrelevant"].)

The reports of the Advisory Committee on Civil Practice recommending the enactment of what is now section 221.2 make clear that this provision is designed to put clear limits in a court rule on the use of instructions not to answer, and thereby prevent obstructive and improper conduct by attorneys during depositions.^[FN2] The new rule, as enacted, largely carries forward some of the existing common-law grounds for instructing a witness not to answer—privilege, enforcement of court {**68 Misc 3d at 1028}orders (such as protective orders entered under CPLR 3103), or questions that are plainly improper and prejudicial—and expressly provides that no ground outside those in section 221.2 (or any in CPLR 3115) is a proper basis for a direction not to answer.

The context and enactment history of section 221.2 thus indicate that the new "right of confidentiality" ground for a direction not to answer should be construed narrowly—not only to avoid significantly expanding the circumstances under which a deponent could properly refuse to answer, but also to forestall an aggressive attorney from using the "right of confidentiality" as a pretext to obstruct the conduct of a deposition. (Cf. Sciara v Surgical Assoc. of W. N.Y., P.C., 32 Misc 3d 904, 908 [Sup Ct, Erie County 2011, Curran, J.] [noting that the Uniform Rules for the Conduct at Depositions enacted in 2006 "were nothing new but rather a useful regulatory guide" to effectuate the process for taking depositions and "to otherwise reconfirm controlling case law"].)

Additionally, as a textual matter the most natural reading of "right of confidentiality" is more narrow than plaintiff's counsel's proffered meaning of "personal" or "private." "Right of confidentiality" connotes not merely that a piece of information is private in the ordinary sense, but that access to, or disclosure of, that information also is subject to one or more specific and binding restrictions.^[FN3]

The structure of section 221.2 further confirms this narrow reading of "right of confidentiality." That ground appears in subdivision (a) along with claims of privilege—which also serve to shield particular, specified categories of information from unconsented access or disclosure. And a broader reading of "right of confidentiality," as equivalent to protections for "personal" or "private" information, would create a substantial {**68 Misc 3d at 1029}overlap with subdivision (c), [*4]which protects deponents against improper and prejudicial questions more generally. (Cf. Bumpus v New York City Transit Auth., 23 Misc 3d 1118[A], 2009 NY Slip Op 50821[U] [Sup Ct, Kings County, Apr. 28, 2009, Robert Miller, J.] [granting a protective order where defendants' counsel sought to require deponent to answer personal, prejudicial, and irrelevant questions regarding his sexual identity].) The sounder interpretation is instead to afford each subdivision of section 221.2 its own distinct sphere of operation.

Moreover, New York courts have repeatedly held that deponents may be required to answer questions seeking information that is "private" in the ordinary or colloquial sense: juvenile-offender adjudications,^[FN4] prior legal claims for personal injury,^[FN5] prior injuries in an automobile collision,^[FN6] Social Security numbers,^[FN7] bank-account and transaction information,^[FN8] and the like. To say now that deponents may on "right of confidentiality" grounds refuse to answer a question seeking their email address and telephone number is difficult, if not impossible, to square with these precedents.

This court accordingly concludes that the scope of "right of confidentiality" is limited: it encompasses only legal interests that, although not formally privileged, are akin to privileges in that they are recognized as weighty and entitled to special consideration from the courts. Thus, for example, this ground for an instruction not to answer may properly shield a deponent from having to divulge trade secrets (see Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3115:10 [b] [suggesting this example]); or from being required to disclose information pertaining to a third party that the deponent has an ethical obligation to maintain in confidence.

The "right of confidentiality" ground in section 221.2 (a) is not, however, a basis to direct a deponent not to answer a question merely because the question seeks information commonly understood as "private." A litigant may be instructed not to {**68 Misc 3d at 1030}answer a question seeking information that is "private," in that sense, only when the question is plainly improper and when having to answer the question would be substantially prejudicial. (See 22 NYCRR 221.2 [c].)

It would be inappropriate for this court to rule in advance on the propriety of specific deposition questions; or to hold in advance that a deponent must answer all questions posed to him. (See American Reliance Ins. Co. v National Gen. Ins. Co., 174 AD2d 591, 593 [2d Dept 1991] [noting that disputes over the propriety of particular deposition questions are properly resolved only after the question has been posed at a deposition]; White, 100 AD2d at 805 [holding it improper to require in advance that a deponent answer all questions posed].) But the court reminds the parties that their conduct in taking and defending depositions in this action must be consistent with this court's rulings.

Accordingly, for the foregoing reasons, it is hereby ordered that in future sessions of plaintiff's deposition, and in depositions of other [*5]witnesses in this action, counsel for the parties shall conduct the deposition—including the interposition of objections and instructions not to answer—in a manner consistent with 22 NYCRR part 221, as construed by this court herein and in prior discovery rulings.